Creyke, Robin --- "Procedural fairness in tribunals and commissions of inquiry" [2019] PrecedentAULA 3; (2019) 150 Precedent 4

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PROCEDURAL FAIRNESS IN TRIBUNALS AND COMMISSIONS OF INQUIRY

By Robin Creyke AO

Procedural fairness – also known as natural justice – requires that before a decision is made which is apt to affect a person’s interests, that person should have an opportunity to be heard. The requirement reflects basic notions of fairness and respect for human dignity.^[1]

The concept is of ancient origin, known to the Greek philosophers and law-makers.^[2] A whimsical reference by Byles J in Cooper v Board of Works for the Wandsworth District^[3] even traced its origin to the Garden of Eden:

‘I remember to have heard it observed by a very learned man... that even God himself did not pass sentence upon Adam before he was called upon to make his defence... And the same question was put to Eve also.’

Procedural fairness is not confined to the Australian legal system, but is ‘the law of many civilised societies’.^[4] The fundamental nature of the fairness obligation is indicated by relief being available under the Constitution for a breach,^[5] and the principle that unless expressly excluded by statute, there is a right to be accorded procedural fairness.^[6] This right applies to tribunals and to public inquiries – as do the following foundation principles, unless superseded by any of the special issues later discussed.

FOUNDATION PRINCIPLES

Procedural fairness provides for fair procedures, not fair outcomes.^[7] The essence of procedural fairness is the standards of procedure which must be followed. Typically, these are described as:

• The prior hearing rule – that is, before a decision is made which is adverse to a person’s rights or interests, they must be given an opportunity to provide documents or give oral evidence to contradict the adverse information; and

• The no-bias rule – that is, the evidence provided must be considered by a decision-maker who is impartial and has no interest in the outcome.

Deciding whether a person is entitled to procedural fairness involves further questions:

• Is the person entitled to fair process?^[8]

• If so, what procedures must be followed?^[9]

Overall, ‘the concern of the law is to avoid practical injustice’.^[10] The aim is to ensure that if the outcome of a breach could have no bearing on the outcome, procedural fairness will apply.^[11]

ENTITLEMENT TO FAIR PROCESS

The prerequisite to entitlement is that a person’s rights or interests are apt to be adversely affected. That alone is not sufficient. Other factors are considered when a decision is made whether the right is excluded. These include whether:

• procedural fairness is expressly excluded;^[12]

• there is another point in the process for procedural fairness;^[13]

• the decision involves high-level policy^[14] or affects the public at large;^[15] and

• the powers are highly discretionary,^[16] urgent,^[17] or involve matters of national security.^[18]

Fair process: Content of procedural fairness

If procedural fairness applies, the procedures to be followed vary according to the circumstances.^[19] The content is decided according to the terms of the statute; the particular circumstances; the subject matter; the type of enquiry; and the rules, for example, of the tribunal or enquiry body.^[20]

At the least, the person affected must be notified, generally in writing.^[21] The notice should have sufficient details to enable the person affected to respond in a timely fashion, to understand the substance of the case and the potential adverse consequences, and to reply either in writing or in person.^[22] The person must be given a reasonable time to respond,^[23] and an opportunity to deal with any information that is ‘credible, relevant and significant’.^[24] The attention of the person should be drawn to any issue critical to the outcome which may not be apparent.^[25] Adverse information should be disclosed but there is no need to divulge the evaluation of the evidence by the decision-maker.^[26]

There is no general rule that the ‘hearing’ must be undertaken by the decision-maker.^[27] However, the decision-maker must be fully informed of the evidence and the submissions.^[28] If an oral hearing is permitted, it is common also to permit the person to be represented, either by a lawyer or someone else.^[29] Representation is particularly important if the person has language difficulties or lacks the ability adequately to represent their case. Cross-examination may be permitted in oral hearings where facts or credibility are contested.^[30]

BIAS

Fair procedure requires that the decision be made by someone who is impartial. A decision not tainted by bias is a matter of probity and fair play and serves to maintain confidence in the decision-making institution. A disinterested decision-maker, for example, has no interest in the proceedings, either by way of financial or personal gain;^[31] by conduct, particularly published statements;^[32] by association with others disqualified on either of the two previous grounds;^[33] or by receipt of information adverse to a person from other undisclosed sources.^[34]

Bias may be apprehended or actual. Actual bias arises when the decision-maker’s mind is so closed that no argument against their point of view is likely to be successful.^[35] Apprehended bias occurs if ‘a fair-minded observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question’.^[36] Establishing bias first requires identification of the behaviour which suggests lack of impartiality, and then showing how the behaviour is logically connected to a biased outcome.^[37] If bias is established, the decision-maker is disqualified from deciding or continuing to ‘hear’ a matter. Bias means the decision, if made, is invalid.^[38]

Commonly encountered circumstances leading to claims of bias are where the decision-maker:

• has private communication with one party to a matter;^[39]

• is both prosecutor and judge;^[40]

• holds known prejudicial views,^[41] or expresses animosity or partiality in the decision-making process;^[42]

• has a close family, personal or professional relationship with a party,^[43] or is a member of an organisation which is a party;^[44] or

• has a financial interest in the matter.^[45]

SPECIAL ISSUES IN TRIBUNALS

A tribunal, like a court, involves an adjudicative process. Procedural fairness is accordingly tied to tribunal process and must be accorded by the tribunal during that process. Generally that means the decision-maker, a tribunal member, conducts a hearing in person or on the papers in order to solve the dispute, assuming it has not been settled in advance by a member or officer of the tribunal. Accordingly, any adverse outcome for a party will arise from the proceeding of the tribunal leading to its decision, including any preliminary or alternative dispute resolution processes.

The tribunal’s processes are found in the statute which sets it up or, if a domestic body, in its contract. The terms of the statute or the contract may be prescriptive. If the documents do not specify fair process, the law implies the common law procedural fairness. Special features of procedural fairness arise in a tribunal context.

Merits review

Most Australian tribunals provide for merits review – that is, review that can take account of new evidence received since an initial adverse decision. That means the new information must be made available to both parties as a matter of fair process. An issue may arise about disclosure in cases of intensely personal or commercially sensitive information. The compromise is to release only factual material which is centrally relevant and material to the outcome.^[46]

Members’ expertise

Tribunals commonly comprise members with legal and non-legal specialist qualifications. When a member’s decision relies on the member’s general knowledge, expertise or experience, even if adverse to a party, no prior disclosure is required.^[47] However, if the information is clearly prejudicial, the person should be given an opportunity to respond to it.^[48]

Duty of inquiry

It is accepted that tribunals are inquisitive, not adversarial, bodies.^[49] The statutory frameworks often provide that tribunals may inform themselves as they ‘think fit’.^[50] The consequence is that a tribunal can seek out material to assist in the decision. New material must be disclosed to all parties to comply with fair process. That obligation does not extend to adverse material which would be known to the party. If there is any doubt, or the material is particularly prejudicial, the person should be informed.^[51]

Information obtained in confidence

A requirement or request for material to be treated as confidential raises procedural fairness issues. Two solutions have been adopted: the material can be disclosed only to the person’s representative^[52] or, alternatively, the tribunal may disclose only a summary. These approaches protect the confidentiality of the source.^[53]

The decision-maker should ‘hear’

An issue may arise where the designated decision-maker does not complete the decision, finalised by another. There is no blanket rule. Some statutes make provision for this circumstance.^[54] The parties should be notified of the change and given an opportunity to comment before a decision is made by another. This does not necessarily entail another oral hearing.^[55] If preliminary or alternative dispute resolution processes have been undertaken by a member, that member should generally not sit on any subsequent hearing in the matter without the consent of the parties.^[56]

Bias and tribunals

It is accepted that administrative decision-makers, including tribunals, are entitled to take account of government policy without this amounting to bias.^[57] There is also no bias in a tribunal decision-maker relying on their general knowledge, expertise or experience (see earlier), or material which is generally available.^[58] Reliance on general knowledge is known as ‘official notice’ (akin to ‘judicial notice’). This is permitted as the tribunal is often designed to comprise members with specialist expertise. Tribunal members, however, need to be assiduous to disqualify themselves from deciding matters in which they have expressed prior prejudicial views, or where their contacts with parties, particularly in small jurisdictions, may raise an apprehension of bias.^[59]

Bias has been alleged against a tribunal as a whole. It is rare for such institutional bias claims to be successful.^[60]

Bias and necessity exception

An exception to the need for decision-makers to disqualify themselves for bias arises in cases of necessity.^[61] The necessity exemption occurs in the case of tribunals with a limited number of members. It is recognised that the tribunal must not be prevented for this reason from performing its statutory function.^[62] There are, however, limits to the exemption. The level of bias must not exceed tolerable limits where a real possibility of bias is present.^[63] Common sense should prevail.

Waiver of bias

A party may waive reliance on the bias rule. A party is said to waive the right if, with full knowledge of the facts, the party fails to raise the claim of bias prior to the decision being made.^[64] It is common for members of tribunals, usually at the commencement of proceedings, to disclose any matter which might be perceived as affecting their impartiality. Any party can then object and the member will generally not hear the matter.^[65] It is necessary for a party to raise the issue of bias in a timely manner, although choosing to speak up may be seen to offend the decision-maker. This may be a factor in deciding whether to remain silent.^[66]

SPECIAL ISSUES IN INQUIRIES

An administrative inquiry or a commission of inquiry is not an adjudicative process. It is investigative, designed to elicit the truth. Investigative processes involve a systematic inquiry or examination to gather the facts from records, submissions and other documentation.^[67] Preliminary processes may involve interviews. As the evidence accumulates, hypotheses emerge as to persons who may suffer detriment (persons of interest) and these need to be tested.^[68] At this point, if an adverse picture is emerging against a person, procedural fairness must be observed.^[69] The person must be notified and may be required to give evidence.

Processes are frequently set out in relevant statutes.^[70] Although these rarely specify that procedural fairness is to apply,^[71] specific provisions imposing notifications obligations and rights to appear and be represented are more common.^[72] If not specified, procedural fairness obligations apply under common law,^[73] but the content varies according to the circumstances.^[74] Importantly, as this is an unfolding process, whether procedural fairness has been granted is not assessable until the conclusion of the investigation and presentation of the final report.^[75]

Submissions in response to provisional statement of adverse findings and recommendations

Persons of interest are notified, provided with a provisional statement and given the opportunity to respond either orally or in written submissions.^[76] The notification must contain sufficient information to enable the person to be aware of the potential personal detriment, particularly when serious.^[77]

Extent of documents disclosed to persons of interest

Fair process to one party must avoid unfair or intrusive processes in relation to other related parties. This means that documents to be disclosed must be redacted to protect the privacy of others mentioned and to avoid giving advance warning to other potential witnesses.^[78]

Disclosure of proposed findings

There is no obligation to disclose provisional views, findings or conclusions,^[79] or evaluation.^[80]

Cross-examination

The statute or contract may grant the investigator discretion to decide whether cross-examination is permitted. In investigations it is recognised that cross-examination can undesirably prolong proceedings.^[81]

Multiple submissions

If new adverse evidence materialises, the person affected may need to be given a right to make further submissions on that evidence.^[82] The right nonetheless must protect the confidentiality of others giving evidence.

CONCLUSION

Procedural fairness is a flexible principle and, as is indicated by the discussion of the differences required by the application of the principles to tribunal hearings as compared with those involved in inquiries, it will vary with the circumstances.

Robin Creyke AO is an Emeritus Professor, ANU where she taught from 1973-2015. She has been a member of seven tribunals and has written widely on matters affecting administrative justice. She has also been a member of the now defunct Administrative Review Council, the Integrity Advisor to the Australian Taxation office, an adviser to other government agencies, and has conducted an inquiry. Robin is a co-author of several leading texts including Control of Government Action (5^th edn, LexisNexis, 2018). EMAIL [e-mail].

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^[1] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [2] per Allsop CJ.

^[2] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (Lam), [140] per Callinan J.

^[3] Cooper v Board of Works for the Wandsworth District [1863] EngR 424; (1863) 143 ER 414 (Cooper), 420 per Byles J.

^[4] Lam, [140] per Callinan J.

^[5] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52, [17] and [41] per Gaudron and Gummow JJ, with whom Gleeson CJ agreed, [142] per Kirby J, [170] per Hayne J; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Miah), [26] per Gleeson CJ and Hayne J; [201] per Gaudron J; [148] per McHugh J; and [182] per Kirby J.

^[6] Annetts v McCann (1990) 170 CLR 596, 598.

^[7] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 160.

^[8] Cooper.

^[9] Dr Bonham’s Case [1572] EngR 107; (1610) 8 Co Rep 113b, 118; Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 63; (2000) 205 CLR 337 (Ebner).

^[10] Lam, [37] per Gleeson CJ.

^[11] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.

^[12] Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.

^[13] Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234; affirmed in Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476.

^[14] FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 (FAI); South Australia v O’Shea (1987) 163 CLR 378 (O’Shea).

^[15] Bread Manufactures of New South Wales v Evans (1981) 180 CLR 404.

^[16] Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274.

^[17] CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 (CPCF).

^[18] Jaffarie v Director General of Security [2014] FCAFC 102; (2014) 226 FCR 505.

^[19] Russell v Duke of Norfolk [1949] 1 All ER 109 (Russell); CPCF, 622 per Gageler J.

^[20] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa); Miah; South Australia v Slipper (2004) 135 FCR 259.

^[21] Russell; Cooper; Andrews v Mitchell [1904] UKLawRpAC 28; [1905] AC 78, 81.

^[22] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone), 591; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489; Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; (2014) 314 ALR 130; Seiffert v Prisoner Review Board [2011] WASCA 148; R v Pharmacy Board of Victoria; Ex parte Broberg [1983] VicRp 17; [1983] 1 VR 211, 215.

^[23] R v Thames Magistrates’ Court; Ex parte Polemis [1974] 1 WLR 1371, 1375; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148.

^[24] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 95-7.

^[25] Alphaone.

^[26] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

^[27] FAI; O’Shea; White v Ryde Municipal Council [1977] 2 NSWLR 909.

^[28] Local Government Board v Arlidge [1915] AC 120.

^[29] Cains v Jenkins (1979) 28 ALR 219, 230.

^[30] Hurt v Rossall [1982] FCA 188; (1982) 43 ALR 252.

^[31] Hot Holdings Pty Ltd v Creasy (2002) 201 CLR 438.

^[32] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568.

^[33] Webb v R [1994] HCA 30; (1994) 181 CLR 41 (Webb).

^[34] Webb, 74; John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34; (2011) 276 ALR 221, 227.

^[35] Ebner; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

^[36] Ibid.

^[37] Ibid.

^[38] Tahmandjis v Brown [1985] FCA 181; (1985) 7 FCR 277.

^[39] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540.

^[40] R v Lee; E x parte Shaw [1882] UKLawRpKQB 103; [1882] 9 QBD 394; Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.

^[41] Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107; (2016) 242 FCR 1; Gaudie v Local Court of NSW [2013] NSWSC 1425; (2013) 235 A Crim R 98; cf Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359.

^[42] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [2].

^[43] Eg British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109.

^[44] R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [1999] UKHL 1; [2000] 1 AC 119.

^[45] Ebner; Kirby v Centro Properties Ltd (No 2) [2012] FCA 70; (2012) 87 ACSR 229.

^[46] Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; (2012) 200 FCR 30, 43.

^[47] Minister for Health v Thompson [1985] FCA 208; (1985) 8 FCR 213, 217.

^[48] Kioa; Alphaone.

^[49] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15, 16.

^[50] Eg Cth: Administrative Appeals Tribunal Act 1975, s33(1); NSW: Civil and Administrative Tribunal Act 2014, s53(2)(b).

^[51] Miah.

^[52] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247.

^[53] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88.

^[54] Eg Administrative Appeals Tribunal Act 1975 (Cth), s19D(2), (4).

^[55] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326.

^[56] Eg Administrative Appeals Tribunal Act 1975 (Cth), s34F.

^[57] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115.

^[58] Cf Lawal v Northern Spirit Ltd [2003] UKHL 35; [2004] 1 All ER 187.

^[59] Koppen v Commissioner for Community Relations (1986) 11 FCR 360.

^[60] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (Laws); Minister for Immigration, Local Government and Ethnic Affairs v Mok [1994] FCA 1035; (1994) 55 FCR 375; Gabrielsen v Nurses Board of South Australia [2006] SASC 199; (2006) 90 ALD 695; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504.

^[61] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 (BATAS), 333-4.

^[62] Laws, 88.

^[63] Builders’ Registration Board v Rauber (1983) 47 ALR 55.

^[64] BATAS, 334.

^[65] Smits v Roach (2006) 227 CLR 423.

^[66] Johnson v Johnson (2000) 201 CLR 488, 571.

^[67] R v Independent Broad-based Anti-Corruption Commissioner ([2016] HCA 8; 2016) 256 CLR 459, [74].

^[68] Duncan v Ipp [2013] NSWCA 189, [217]; Duncan v Independent Commission Against Corruption (ICAC) [2016] NSWCA 143, [690].

^[69] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29, [75]; Obeid v Ipp [2016] NSWSC 143, [688].

^[70] In particular, ombudsman Acts, royal commissions Acts, police Acts, and independent commissions against corruption legislation. See also NCSC v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 (NCSC), 326; Duncan v ICAC [2016] NSWCA 143.

^[71] Exceptions include eg ACT: Inquiries Act 1991, s18(a); Royal Commissions Act 1991, s23; NSW: Independent Commission against Corruption Act 1988, s31B.

^[72] Eg Cth: Ombudsman Act 1876, s8(5), (7); NSW: Ombudsman Act 1974, ss16, 24; Royal Commissions Act 1923, ss7, 8.

^[73] Eg NSW Ombudsman, Operation Prospect Report (2016) Vol 1 [2.4.8].

^[74] Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, [156].

^[75] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578; Brettingham-Moore v St Leonards Corporation [1969] HCA 40; (1969) 121 CLR 509, 521; Botany Bay Council v New South Wales [2016] NSWCA 243, [79].

^[76] Obeid v Ipp [2016] NSWSC 1376, [96].

^[77] Glynn v ICAC (Glynn) (1990) 20 ALD 214.

^[78] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88, [27]-[29].

^[79] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, [9]; Lawrie v Lawler [2016] NTCA 03, [192].

^[80] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, [32].

^[81] NCSC, 314.

^[82] Glynn, 218-9.